Citation Nr: 9813680
Decision Date: 04/30/98 Archive Date: 05/08/98
DOCKET NO. 91-42 844 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, Puerto Rico
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
WITNESSES AT HEARINGS ON APPEAL
Appellant and Roberto A. Capestany, M.D., J.D.
ATTORNEY FOR THE BOARD
Roberto D. DiBella, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1964 to
September 1966.
This appeal arises from a January 1990 rating decision by the
RO
In April 1992 and September 1994, the Board of Veterans’
Appeals (Board) remanded the case for development of the
record. The case is again before the Board for appellate
review.
REMAND
The veteran maintains that his emotional problems are due to
the stress he encountered during his military service. He
states, in essence, that, while assigned to the 178th
Ordinance (Ord) Company (Co), between January 1, 1965 to
February 22, 1966, in the Republic of Vietnam, he was exposed
to enemy fire in the Company’s area of operation to include
Valley “D.” He also contends that he accidentally shot a
Vietnamese child, and witnessed the death of a fellow
soldier. The U.S. Army & Joint Services Environmental
Support Group (ESG), in an October 1993 letter, verified that
the veteran was involved in a shooting incident of a
Vietnamese child on December 20, 1965 in Vietnam. However,
ESG was unable to verify his other claimed stressors.
Furthermore, the veteran has presented a well-grounded claim
of service connection for post-traumatic stress disorder
because he has recently been diagnosed with post-traumatic
stress disorder and his private physician has on numerous
occasions related his psychiatric condition to stressors
experienced in service. Cohen v. Brown, 10 Vet. App. 128,
137 (1997); Moreau v. Brown, 9 Vet. App. 389, 393 (1996).
When the veteran has submitted a well-grounded claim for
post-traumatic stress disorder, the VA is required to assist
him in developing the facts pertinent to his claim. Zarycki
v. Brown, 6 Vet.App. 91, 99 (1993); See also Dizoglio v.
Brown, 9 Vet. App. 163, 167 (1996). (When no attempt was
made to verify the veteran’s claimed stressor, which if
verified, would be a sufficient stressor, the VA has a duty
to attempt to corroborate this information.)
The RO did attempt to verify the veteran’s claimed stressors,
but in the October 1993 letter, ESG was unable to verify the
stressors pertaining to “The Valley” incident and the
soldier who purportedly was killed in the presence of the
veteran. In this letter, ESG additionally informed the RO
that in order to provide research in regard to these claimed
stressors, the veteran had to provide the most specific date
possible, type and location of the incident, numbers and full
names of casualties, and other units involved. However,
there is no record from the claims folder that the RO has
relayed ESG’s request to the veteran. When ESG requests a
more specific description of a stressor in question, the RO
must immediately request the veteran to provide the necessary
information. Cohen, 10 Vet. App. at 148-149.
Finally, in the veteran’s most recent VA examination, which
was conducted in November 1993, a board of three
psychiatrists was of the opinion that he did not satisfy the
requirements for the diagnosis of post-traumatic stress
disorder. However, subsequent private examinations have
reported that the veteran has fulfilled some of the post-
traumatic stress disorder criteria, but did not meet the
diagnosis. Since, the veteran’s private physician has
rendered a post-traumatic stress disorder diagnosis on
numerous occasions, and more recent private examinations have
reported some criteria to support a post-traumatic stress
disorder diagnosis, the RO should schedule the veteran for
another VA psychiatric examination in order to obtain a
medical opinion as to the sufficiency of the stressors to
support the post-traumatic stress disorder diagnosis and the
adequacy of the veteran’s symptomatology. Cohen, 10 Vet.
App. at 140.
In fact, since there has been a wide diversity of medical
opinions regarding the veteran’s condition, another VA
psychiatric examination should be performed with the
appropriate psychological testing by a board of at least two
psychiatrists who have not previously examined him. Such
examiners must be provided with the claims folder for review.
Cousino v. Derwinski, 1 Vet. App. 536, 540 (1991).
Consequently, this case must remanded for further development
of the record.
To ensure that the VA has met its duty to assist the claimant
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should again take the
appropriate steps to contact the veteran
in order to corroborate information
concerning his alleged stressful events
in service or stressors, which have been
identified concerning his claimed post-
traumatic stress disorder. This should
include dates, places, unit assignments
and other circumstances pertaining to
“The Valley” incident and any other
combat with enemy in which he purportedly
saw a fellow soldier killed. The October
1993 ESG letter should be attached to the
request to assist the veteran. If
received, the evidence should be
associated with the claims folder.
2. The RO should take the appropriate
steps to contact the United States Armed
Services Center for Research of Unit
Records (USASCRUR), 7798 Cissna Road
Springfield, Virginia 22150 and verify
all claimed stressors of record.
3. The RO should take the appropriate
steps to contact the veteran and obtain
the names and addresses of all medical
care providers who have treated him for
any psychiatric disability since December
1994. Based on his response, the RO
should obtain copies of all of the
records not already of record from the
identified treatment sources and
associate them with the claims folder.
4. The RO also should obtain copies of
any records referable to VA treatment
received by the veteran pertaining to
psychiatric disease since December 1994
and associate them with the claims
folder.
5. The RO should schedule the veteran
for a comprehensive VA psychiatric
examination before a Board of at least
two psychiatrists. All indicated testing
should be conducted to include the
Mississippi Scale for Combat Related
post-traumatic stress disorder, Beck
Depression Scale, Adult Screening Battery
and Minnesota Multiphasic Personality
Inventory. The claims folder must be
made available to the examiners prior to
the examination. Based on their review
of the case, it is requested that the
examiners determine whether the veteran
is suffering from post-traumatic stress
disorder and, if so, whether the claimed
stressor(s) is sufficient to support such
a diagnosis and whether there is a causal
relationship between the stressor(s) and
the veteran’s present symptomatology.
The examiners should provide reasons and
bases for any opinion rendered, and
reconcile any conflicting medical
evidence to include the opinions and
hearing testimony submitted by the
veteran’s private physician, Dr.
Capestany.
6. After the development requested above
has been completed, the RO should again
review the veteran’s claim. If the
benefit sought on appeal remains denied,
the veteran and his representative should
be furnished a supplemental statement of
the case and given the opportunity to
respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
N.R. ROBIN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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